9 FLRA No. 89
INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, AFL-CIO, LOCAL F-37
Union
and
NAVAL TRAINING CENTER, GREAT
LAKES, ILLINOIS
Agency
Case No. O-NG-460
DECISION AND ORDER ON NEGOTIABILITY ISSUE
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND PRESENTS THE ISSUE
OF THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL.
UNION PROPOSAL /1/
ADMINISTRATIVE LEAVE
WHEN A NON-WORKDAY IS PROCLAIMED BY EXECUTIVE ORDER AND PERSONNEL
DESIGNATED ESSENTIAL ARE
REQUIRED TO REPORT FOR DUTY, AN ADMINISTRATIVE LEAVE DAY WILL BE
GRANTED TO THE EMPLOYEE
WITHIN . . . FOLLOWING THE NON-WORKDAY. THE ASSIGNED LEAVE DAY WILL
BE AT THE SUPERVISOR'S
DISCRETION. UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD,
INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
DETERMINATION.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
UNDER THE STATUTE BECAUSE IT CONCERNS A MATTER THAT IS EXCLUDED FROM THE
DEFINITION OF "CONDITIONS OF EMPLOYMENT" UNDER SECTION 7103(A)(14) OF
THE STATUTE. /2/
OPINION
CONCLUSION AND ORDER: THE PROPOSAL CONCERNS A MATTER WHICH IS
"SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE" UNDER SECTION
7103(A)(14)(C) AND, THEREFORE, IS EXCLUDED FROM "CONDITIONS OF
EMPLOYMENT" WHICH ARE SUBJECT TO THE DUTY TO BARGAIN UNDER THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW OF THE PROPOSAL AT ISSUE IN THE INSTANT CASE BE, AND IT HEREBY
IS, DISMISSED.
REASONS: THE UNION'S PROPOSAL WOULD REQUIRE THAT IF THE PRESIDENT
DECLARES A REGULARLY SCHEDULED WORKDAY TO BE A "NON-WORKDAY" (HOLIDAY),
AN EMPLOYEE WHO MUST REPORT FOR DUTY ON SUCH A HOLIDAY WOULD BE GRANTED
A DAY OF "ADMINISTRATIVE LEAVE," I.E., A DAY OFF WITH PAY NOT CHARGED TO
LEAVE, IN ADDITION TO COMPENSATION TO WHICH THE EMPLOYEE WOULD OTHERWISE
BE ENTITLED.
BASED UPON THE RECORD, THE EMPLOYEE INVOLVED IN THIS CASE RECEIVED
PREMIUM PAY COMPENSATION ON AN ANNUAL BASIS UNDER 5 U.S.C. 5545(C)(1).
/3/ THAT SECTION APPLIES TO CERTAIN EMPLOYEES, SUCH AS THOSE INVOLVED
HEREIN, WHO ARE REQUIRED TO REPORT FOR WORK ON HOLIDAYS WHICH FALL
WITHIN THEIR REGULAR WORK SCHEDULES. IN RECOGNITION THEREOF, SUCH
EMPLOYEES RECEIVE PREMIUM PAY ON AN ANNUAL BASIS RATHER THAN BEING
COMPENSATED FOR EACH HOLIDAY WORKED UNDER OTHER PROVISIONS OF TITLE 5.
THAT IS, THE FACT OF THEIR BEING REQUIRED TO REPORT FOR WORK ON HOLIDAYS
IS A FACTOR IN DETERMINING THEIR ENTITLEMENT TO ANNUAL PREMIUM PAY. /4/
THERE IS NO PROVISION OR AUTHORIZATION FOR ADDITIONAL COMPENSATION IN
CONNECTION WITH THE REGULARLY SCHEDULED WEEKLY TOUR OF DUTY-- E.G., TIME
OFF FOR WORK PERFORMED ON A HOLIDAY-- FOR EMPLOYEES WHO ALREADY ARE
RECEIVING ANNUAL PREMIUM PAY PURSUANT TO SECTION 5545(C)(1).
SECTION 7103(A)(14)(C) OF THE STATUTE, DEFINING "CONDITIONS OF
EMPLOYMENT" WHICH ARE SUBJECT TO NEGOTIATION, EXPRESSLY EXCLUDES MATTERS
"TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY FEDERAL
STATUTE." INASMUCH AS COMPENSATION FOR WORK REQUIRED ON NON-WORKDAYS IS
SPECIFICALLY PROVIDED FOR BY 5 U.S.C. 5545(C)(1) IN DETERMINING ANNUAL
PREMIUM PAY FOR EMPLOYEES INVOLVED IN THIS CASE, THE UNION'S PROPOSAL
CONCERNS MATTERS WHICH, UNDER SECTION 7103(A)(14)(C), ARE EXCLUDED FROM
CONDITIONS OF EMPLOYMENT SUBJECT TO NEGOTIATION UNDER THE STATUTE.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL
GRAIN INSPECTION LOCALS AND UNITED STATES DEPARTMENT OF AGRICULTURE,
FEDERAL GRAIN INSPECTION SERVICE, WASHINGTON, D.C., 3 FLRA 530 (1980),
AFFIRMED SUB NOM. AFGE V. FLRA, 653 F.2D 669 (D.C. CIR. 1981). SEE ALSO
ASSOCIATION OF CIVILIAN TECHNICIANS, PENNSYLVANIA STATE COUNCIL AND THE
ADJUTANT GENERAL, DEPARTMENT OF MILITARY AFFAIRS, COMMONWEALTH OF
PENNSYLVANIA, 3 FLRA 50 (1980). ISSUED, WASHINGTON, D.C., AUGUST 3,
1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ ACCORDING TO THE UNION, THE BLANK SPACE IN ITS PROPOSAL WOULD
DESIGNATE THE PERIOD OF TIME IN WHICH THE LEAVE DAY MUST BE TAKEN, AND
WOULD BE PART OF THE NEGOTIATIONS OVER THIS PROPOSAL.
/2/ SECTION 7103(A)(14)(C) PROVIDES AS FOLLOWS:
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSES OF THIS CHAPTER--
. . . .
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH
TERM DOES NOT INCLUDE POLICIES, PRACTICES AND MATTERS--
. . . .
(C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE(.)
/3/ 5 U.S.C. 5545(C)(1) PROVIDES AS FOLLOWS:
SEC. 5545. NIGHT, STANDBY, IRREGULAR, AND HAZARDOUS DUTY
DIFFERENTIAL
. . . .
(C) THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE OFFICE OF
PERSONNEL MANAGEMENT, MAY PROVIDE THAT--
(1) AN EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT,
OR WITHIN THE CONFINES
OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A
SUBSTANTIAL PART OF WHICH
CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING
WORK, SHALL RECEIVE PREMIUM
PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED
BY OTHER PROVISIONS OF
THIS SUBCHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN
EXCESS OF HIS REGULARLY
SCHEDULED WEEKLY TOUR. PREMIUM PAY UNDER THIS PARAGRAPH IS
DETERMINED AS AN APPROPRIATE
PERCENTAGE, NOT IN EXCESS OF 25 PERCENT, OF SUCH PART OF THE RATE OF
BASIC PAY FOR THE
POSITION AS DOES NOT EXCEED THE MINIMUM RATE OF BASIC PAY FOR GS-10
(OR, FOR A POSITION
DESCRIBED IN SECTION 5542(A)(3) OF THIS TITLE, OF THE BASIC PAY OF
THE POSITION), BY TAKING
INTO CONSIDERATION THE NUMBER OF HOURS OF ACTUAL WORK REQUIRED IN THE
POSITION, THE NUMBER OF
HOURS REQUIRED IN A STANDBY STATUS AT OR WITHIN THE CONFINES OF THE
STATION, THE EXTENT TO
WHICH THE DUTIES OF THE POSITION ARE MADE MORE ONEROUS BY NIGHT,
SUNDAY, OR HOLIDAY WORK, OR
BY BEING EXTENDED OVER PERIODS OF MORE THAN 40 HOURS A WEEK, OR OTHER
RELEVANT FACTORS(.)
/4/ ACCORD, COMPTROLLER GENERAL DECISION B-192815 (DEC. 7, 1978).